The National Inquiry on Murders and Disappearances of
Indigenous Women and Girls
Recommendations
from the Symposium on
Planning for Change – Towards a National Inquiry and an
Effective National Action Plan
Table of Contents
Background
1. Scope and Design of the Inquiry
2. Goals of the Inquiry
3. Analytical Framework
a) Indigenous Laws and Legal Orders
b) Indigenous Law Lodges
4. Human Rights Approach
5. A National Inquiry
6. Harms to Families and Communities
7. Systemic Focus
a) Socio-Economic Marginalization
b) Sexual Violence
c) Police and Justice System
8. Data Collection
9. Independence
10. Leadership
11. Phases, Components, Capacities of an Inquiry
a) Review of Extant Recommendations
b) Scrutiny of Systemic Discrimination
c) Independent Mechanism for Review of Individual Cases
d) Engagement of Different Stakeholders
e) Different Kinds of Hearings
f) Public Education Component and Inquiry Process
g) Formulation of a Plan
h) Monitoring Implementation
Consolidated Recommendations
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Background
On January 30 and 31, 2016, the Native Women's Association of Canada,
the Canadian Feminist Alliance for International Action, and the Canadian
Journal of Women and the Law convened a Symposium in Ottawa to
engage in dialogue about the upcoming national inquiry on the murders
and disappearances of Indigenous women and girls (MMIWG). Forty
Indigenous women leaders, family members of murdered and
disappeared women, academics and allies were joined by six human
rights experts from the United Nations and the Inter-American
Commission on Human Rights.1 This document is distilled from
presentations and dialogue at the Symposium.
This is a consensus document. The group was largely in agreement with
the principles put forward. A few women did not agreed fully with all
aspects of these recommendations. We have attempted to capture their
concerns in this document. This document does not purport to deal
exhaustively with all aspects of the inquiry. Other areas of consideration
include: how to incorporate the voices and experiences of young, elderly,
disabled, and LGBTQ2S Indigenous women into the inquiry.
1. Scope and Design of the Inquiry
The inquiry must be focused on racialized and sexualized violence
against Indigenous women and girls that is perpetrated by both
Indigenous and non-Indigenous men, and by representatives of the state.
It should be focused on murders and disappearances of Indigenous
women and girls in particular. While there have been recent calls to
include violence against Indigenous men and boys within the scope of
this inquiry, this would be a grave mistake. The violence against
Indigenous women and girls is a gendered and sexualized phenomenon,
caused by the inferior status of Indigenous women and by intersecting
sex and race discrimination. Including violence against Indigenous men
and boys would obfuscate the causes and consequences of the violence
experienced by Indigenous women and girls and impair the inquiry's
ability to identify meaningful and effective solutions.
The human rights experts were: Barbara Bailey, Vice-Chair of the United Nations
Committee on the Elimination of Discrimination against Women (CEDAW Committee);
Ruth Halperin-Kaddari, Member of the CEDAW Committee and Chair of the Working
Group on Follow-up to Inquiries; Special Rapporteur on the rights of Indigenous peoples,
Victoria Tauli-Corpuz; Special Rapporteur on violence against women, its causes and
consequences, Dubravka Šimonović; Special Rapporteur on the right to adequate
housing, Leilani Farha; and Chair of the Inter-American Commission on Human Rights
and Rapporteur for Canada, James Cavallaro. Also in attendance was Caroline BettingerLopez, Advisor to the White House on Violence against Women.
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Indigenous women and girls in Canada are disproportionately subjected
to male violence compared to non-indigenous women. This is true for
both the number of violent incidents experienced and the severity of
violence inflicted on them. Because of their sex and Indigeneity they are
specifically targeted by some men for violent attacks.2
To ignore or obscure the gendered element of this violence would do a
disservice to the Indigenous women and girls threatened and affected by
it.
Recommendation 1: That the national inquiry's mandate, as
originally announced, be focused on gendered, sexualized and
racialized violence against Indigenous women and girls, and their
murders and disappearances in particular.
2. Goals of the Inquiry
The goals of the inquiry should be three: 1) to identify measures that will
reduce and eliminate male violence against Indigenous women and girls
and ensure that the human rights of Indigenous women and girls and the
human rights obligations of Canadian governments are fully
implemented; 2) to provide justice, redress and answers to family
members of disappeared and murdered Indigenous women and girls and
to their communities; and 3) to incorporate steps necessary to address
the systemic violence against Indigenous women and girls, and to
support and provide redress for families and communities, into a
comprehensive, national co-ordinated plan of action.
Recommendation 2: That the goal of the national inquiry be to
provide a systemic examination of the causes and consequences of
gendered, sexualized and racialized violence against Indigenous
women and girls including the harms to their families and
communities, and to identify the measures necessary to address them
effectively.
3. Analytical Framework
This inquiry needs to take an Indigenous feminist approach to its work,
that is, an approach committed from the outset to the substantive
equality of Indigenous women and girls, and which roots its thinking in
the specific realities of their lives and conditions. From the outset, the
inquiry needs to fully acknowledge the past and present effects of
colonization on the lives of Indigenous women and girls, and on the
Commissioners A.C. Hamilton and C.M. Sinclair, Report of the Aboriginal Justice
Inquiry of Manitoba: The Deaths of Helen Betty Osborne and John Joseph Harper, 1991.
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attitudes, practices and policies of Canadian governments and
institutions.
a) Indigenous Laws and Legal Orders
The inquiry must incorporate Indigenous law and legal orders into its
work and practice. Missing and murdered Indigenous women are a
consequence of state lawlessness created by Canadian law’s inability to
deal with the ongoing aftermath of colonialism and its attendant violence.
These spaces of lawlessness are also the result of the denial and erosion
of Indigenous laws and legal orders since the arrival of settlers. The
inquiry must not perpetuate the undermining and erasure of Indigenous
laws and legal orders, but rather must seek to practically support
Indigenous lawfulness and engagement with Indigenous legal orders.
Colonial violence is evident in its impact on Indigenous peoples’
communities, bodies and personhood. The compounding and ongoing
colonial attack manifests itself in a violence particular to Indigenous
women and girls.
This imperative poses some unique challenges and opportunities: while
Indigenous law has not been eradicated, there is work that needs to take
place in rebuilding and revitalizing the full scope of these legal orders.
The inquiry is an opportunity to play a part in this rebuilding process by
creating a venue that takes the role and practice of Indigenous law
seriously, and where Indigenous knowledge, Indigenous feminism and
feminist legal theories, Indigenous legal and critical theories are central.
b) Indigenous Law Lodges
The inquiry must include spaces (Law Lodges) where this work of
Indigenous law rebuilding and revitalisation can take place; spaces where
civility, civil society and practices of citizenship within Indigenous nations
and collectivities can be discussed and debated as they relate to male
violence against Indigenous women and girls.
Recommendation 3: That the national inquiry undertake its work
using an Indigenous feminist analysis that incorporates gender based
analysis and Indigenous law, and that its analysis, framework and
strategy be grounded by the specific realities and conditions of
Indigenous women’s and girls’ lives in Canada.
4. Human Rights Approach
A human rights framework must be incorporated into the mandate of the
national inquiry. The inquiry is a means of acknowledging and addressing
Canada’s failures to implement the full range of the human rights of
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Indigenous women, including their civil, political, economic, social and
cultural rights, and moving towards fulfillment of them. The new
Government of Canada has promised to implement the United Nations
Declaration on the Rights of Indigenous Peoples, which protects the
human rights of Indigenous women. Canada is bound by treaties,
declarations and agreements, including the Declaration on the Rights of
Man and the Convention on the Elimination of Discrimination against
Women, which require Canada to act with due diligence to protect,
prevent, investigate, prosecute and remedy violence against Indigenous
women and girls, and to address the harms that it inflicts on families and
communities. Canada has also ratified the International Covenant on Civil
and Political Rights and the International Covenant on Economic Social
and Cultural Rights, guaranteeing the full enjoyment of civil, political,
economic, social and cultural rights to Indigenous women and girls.
The Inter-American Commission on Human Rights and the United Nations
Committee on the Elimination of Discrimination against Women
conducted investigations in Canada into murders and disappearances of
Indigenous women and girls, and issued reports in 2015.3 The CEDAW
Committee found that Canada’s failure to take adequate action to
address the violence is a ‘grave violation’ of the rights of Indigenous
women and girls. The CEDAW Committee issued 38 recommendations;
the Inter-American Commission also issued recommendations.
Implementing these recommendations is an obligation of Canadian
governments. Consequently, the start-up phase of the national inquiry
should be the immediate implementation of these recommendations,
including the elimination of all remaining sex discrimination from the
Indian Act, followed by the review of other evidence-based studies and
reports that already exist, and the identification of gaps in evidence and
knowledge that must be filled.
Throughout its work, the inquiry should be assessing and evaluating
evidence and solutions against the framework of the human rights of
Indigenous women and girls, in order to ensure that, when implemented,
the inquiry’s recommendations and plan will result in fulfillment of the
rights of Indigenous women and their families, and fulfillment of the
obligations of Canadian governments.
Committee on the Elimination of Discrimination against Women, Report of the inquiry
concerning Canada of the Committee on the Elimination of Discrimination against
Women under article 8 of the Optional Protocol to the Convention on the Elimination of
All Forms of Discrimination, UN Doc CEDAW/C/OP.8/CAN/1, 6 March 2015, available at:
http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=15656&LangID
=E; Inter-American Commission on Human Rights, Murders and Disappearances of
Indigenous Women and Girls in British Columbia, Canada, 12 January 2015, online:
http://www.oas.org/en/iachr/reports/pdfs/Indigenous-Women-BC-Canada-en.pdf
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Recommendation 4: That the mandate specify that the national
inquiry will take a human rights-based approach and that its
standards, analysis and outcomes will be grounded in human rights,
including instruments that set out women’s human rights and the
rights of Indigenous peoples.
Recommendation 5: That the Government of Canada implement the
recommendations of the United Nations Committee on the Elimination
of Discrimination and the Inter-American Commission on Human
Rights, which have investigated the murders and disappearances,
issued reports, and made concrete recommendations to Canada
about how to move forward. These recommendations provide a base
line for the inquiry and implementing them must be the first phase of
the work of the inquiry.
5. A National Inquiry
The inquiry must be national in scope, and all levels of government –
federal, provincial, territorial and Indigenous– must be open to scrutiny
and the application of corrective actions. As the Government of Canada is
calling and leading the establishment of the inquiry, it must obtain the
immediate agreement of the provinces and territories regarding their
inclusion and co-operation. Were the inquiry to be only federal in scope,
policing in many jurisdictions, and social programs and policies –
including social assistance, housing and child welfare – would fall outside
the authority of the inquiry and the goals of the inquiry would be
unachievable.
The Inter-American Commission on Human Rights and the United Nations
Committee on the Elimination of Discrimination against Women (CEDAW
Committee) have stressed that failures to co-ordinate among institutions,
among police forces, and between levels of government have contributed
to the increased risk of violence faced by Indigenous women and girls.
Indeed, the CEDAW Committee found that Canada stands in violation of
Article 3 of the Convention on the Elimination of Discrimination against
Women because of “insufficient coordination between the different
jurisdictional powers of the State party…which exposes Aboriginal
women to gaps with regard to both social and judicial protection.” The
problems of failed police response, and entrenched structural inequality,
cannot be solved by the federal government acting alone. These
problems can only be solved by federal, provincial and territorial
governments acting together and collaborating on solutions and
implementation.
Recommendation 6: That the Government of Canada immediately
secure participation in the inquiry from all the provinces and
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territories to ensure that the inquiry is truly national in scope, and is
not hampered by jurisdictional limitations.
6. Harms to Families and Communities
The inquiry must provide a safe, supportive space for family and
community members to tell their stories about the loss of a woman or girl
and the police and justice system response to the disappearance or
murder. Supports include the presence of elders, ceremony appropriate
to the lands where hearings are taking place, counselling, and legal
assistance as appropriate. Special supports may be needed for the
children of disappeared and murdered women. Family must be broadly
defined, as many Indigenous women and girls are disconnected from
their blood families and communities of origin and make 'families of the
heart'. These families are also affected by loss and by the indifference of
officials to their efforts to find loved ones; they also suffer trauma, and
have experience and information to offer to the inquiry.
The national inquiry must have the capacity to provide redress, healing,
memorialization, and compensation to family members, and to children
of murdered and disappeared Indigenous women and girls.
Recommendation 7: That the national inquiry fully address the harms
done to family members and communities by gendered, racialized
and sexualized violence against Indigenous women and girls and
inadequate police response to it, and provide safe, supportive spaces,
with counseling, financial support and legal assistance as required, in
which family members and community members can tell their stories
and seek redress.
7. Independent Review of Individual Cases
The inquiry should design and oversee the initial operation of a separate,
specialized mechanism for the independent review of those cases where
family members or communities believe that investigations of
disappearances or murders were faulty, or where official conclusions
regarding deaths or disappearances should be re-examined. The work of
this independent review mechanism should be overseen and evaluated by
the inquiry on an ongoing basis, to ensure that its operations and
methodologies are sound and effective.4 This independent review
Such a mechanism was recommended by the Honourable Susan E. Lang in her Report
of the Motherisk Hair Analysis Independent Review. Justice Lang found that faulty hair
testing at the Motherisk Program at the Hospital for Sick Children affected decisions
made by child welfare agencies about parent–child relationships or criminal
responsibility. She recommended that an independent Review and Resource Centre
(RRC) be established to identify individual cases where parents and children, or others,
were affected. The Review and Resource Centre would provide to individuals who may
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mechanism may need to become permanent or continue after the inquiry
has completed its work. Supports for families, including counselling and
legal assistance, should be built in to this independent review.
Recommendation 8: That the national inquiry develop a special
mechanism for the independent review of those cases where family
members or Indigenous organizations believe that investigations or
official conclusions regarding deaths or disappearances should be reexamined.
8. Systemic Focus
The inquiry must have a systemic focus, that is, it must be able to
examine the structural inequalities experienced by Indigenous women
and girls, and the root causes of the gendered, racialized and sexualized
violence they face.
For this inquiry, the examination of policy or systemic issues will be
crucial and central, and the inquiry must have ample research capacity,
and the ability to engage experts from different disciplines. It is the
policy or systemic component of the inquiry that will identify the changes
needed to correct the current, country-wide human rights violations
experienced by Indigenous women and girls.
The systemic review must examine: 1) the social and economic
marginalization of Indigenous women and girls that is a root cause of the
violence; 2) the failures of police and the justice system to protect
Indigenous women and girls, and to appropriately prosecute and punish
perpetrators of violence against them; 3) the state violence against
Indigenous women and girls, including direct violence committed by
police, other justice system officials, and state representatives in
positions of authority; and 4) the sexualized stereotyping of Indigenous
women and girls, and the impacts and consequences of sexual
exploitation and trafficking on their lives.
Recommendation 9: That the national inquiry fully address the root
causes of gendered and racialized violence against Indigenous
women and girls, including the systemic and institutionalized
devaluing of the lives of Indigenous women and girls, the harmful
impact of colonial laws and policies, the impunity caused by failures
of law enforcement agencies to diligently investigate and prosecute
have been affected comprehensive access to information, legal advice, counselling,
support, assessments, alternative dispute resolution services, and other ancillary
resources..." The Report is available at:http://www.m-hair.ca/docs/defaultsource/default-documentlibrary/motherisk_enbfb30b45b7f266cc881aff0000960f99.pdf?sfvrsn=2. The RRC is
described at 297.
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violence, the proliferation of sexualized violence and imagery of
sexualized violence, and all other factors that have caused the past
and present structural inequalities and violence against Indigenous
women and girls.
a) Social and Economic Marginalization
The inquiry must investigate the social and economic marginalization of
Indigenous women and girls, which makes them vulnerable to violence
and unable to escape it.
The United Nations Committee on the Elimination of Discrimination
against Women found that Canada’s failure to address and remedy the
disadvantaged social and economic conditions in which Indigenous
women and girls live has allowed violence to persist. The realization of
economic, social, political and cultural rights is necessary to enable
Indigenous women and girls to escape violence.5
The inquiry must examine the adequacy of social programs and services
to provide safety and security, and the ways in which Indigenous
women’s structural and systemic social and economic marginalization
makes them targets for violence. Intergenerational poverty; lack of
adequate housing; limited food security; inferior educational
opportunities; under-employment; a racist child welfare system; overincarceration; and limited availability of reproductive health services and
services to address addictions, among other things, must be examined as
underlying factors causing the violence against Indigenous women and
girls.
A lack of adequate social services for Indigenous people and a childwelfare system that disproportionately removes Indigenous children from
their homes make Indigenous women more vulnerable to exploitation and
violence. Without access to safe shelter, Indigenous women are forced to
stay in violent homes. When Indigenous women and girls experience
violence and they do not have sufficient access to legal aid or legal
services they cannot seek justice. When Indigenous women and girls’
organizations are underfunded or non-existent they cannot create the
safe spaces necessary for Indigenous women and girls to escape violence
and poverty.
Recommendation 10: That the national inquiry fully address the
colonial context in which violence against Indigenous women and
girls occurs and specifically the profound social and economic
disadvantage of Indigenous women and girls. In particular, the
national inquiry must address the poverty of Indigenous women and
5
CEDAW Committee, Report of the inquiry concerning Canada, at paras. 203 and 210.
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girls and their disadvantaged social and economic conditions in
housing, food security, education, employment, child welfare, and
their over-incarceration.
(b) Sexual Exploitation and Trafficking of Indigenous Women and
Girls
Historically, settlers used Indigenous women as ‘country wives’ and
labelled Indigenous women ‘squaws’. Since colonization, Indigenous
women and girls have been stereotyped as sexually accessible and
disposable women.
Because of this oppression, Indigenous women and girls have been
subject to brutal and terrorizing sexual violence that has been neglected
by police and condoned by courts in Canada.
The inquiry must examine how the sexual stereotyping of Indigenous
women is related to the violence they experience. The dehumanization of
Indigenous women and girls and assumptions about their sexual
availability are key factors in the violence that must be addressed by the
inquiry.
The United Nations Committee on the Elimination of Discrimination
against Women recommended that Canada pay special attention to the
sexual exploitation of Indigenous women and girls and conduct studies
to better understand and develop mechanisms to combat trafficking of
Indigenous women and girls.6
The inquiry must also examine the role that technology plays in
facilitating human trafficking, and in disseminating online racialized and
sexualized hate and harassment. Existing research shows how racism can
undermine a sense of belonging and self-esteem in ways that facilitate
the sexual trafficking of Indigenous women and girls. The prevalence of
bullying in northern communities, and the potentially acute impacts of
online harassment in the context of smaller communities also contribute
to sexual trafficking. More research is needed to understand the scope
and impacts of cyber-violence on Indigenous women and girls, and its
role in the murders and disappearances of Indigenous women and girls.
Recommendation 11: That the national inquiry's analysis of
gendered, racialized and sexualized violence include an examination
of sexual exploitation and trafficking of Indigenous women and girls,
and their causes and consequences.
(c) Police and Justice System Response
6
CEDAW Committee, Report on the inquiry concerning Canada, paras. 120 – 127.
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The national inquiry must involve an in-depth review of policing
institutions, including police forces and police oversight bodies, as well
as of the judicial system, across federal, provincial, territorial, and First
Nations jurisdictions.
That Canada's police and justice system response to male and state
violence fails Indigenous women and girls, their families and
communities has been found as a fact by the United Nations Committee
on the Elimination of Discrimination against Women and the
Inter-American Commission on Human Rights. This failure is one of the
threshold reasons for the establishment of the national inquiry.
Policing and police oversight failures in response to cases of missing and
murdered Indigenous women and girls include but are not limited to: 1)
delay in acting on reports of missing or murdered Indigenous women and
girls; 2) failure to inform affected families about the status of
investigations; 3) letting investigations 'turn cold' without informing all
affected parties; 4) not laying a charge, recommending a Crown not to
charge, and/or determining that a death or disappearance is a result of
suicide, an accident, or a personal decision to disappear, without any
explanation, or inadequate explanations, to affected parties; 6) failure to
recognize and investigate patterns of violence; 7) failure to address the
jurisdictional complexity of policing in Canada and to address this
complexity and coordinate between police forces; 8) police oversight
bodies not adequately responding to complaints of police misconduct;
and 9) police being direct perpetrators of violence.
Failed justice system responses include: 1) failure to diligently prosecute;
2) decisions regarding prosecution based on sexist and racist stereotypes
and attitudes about ‘believable witnesses’ and ‘likelihood of success’; and
3) gender and race-biased judicial decision-making.
The inquiry's mandate must include a detailed review of systemic
patterns of failure, inadequacy, misconduct, sex and race discrimination,
and direct violence by police and justice system officials in all
jurisdictions.
In addition, Canada’s police oversight bodies are neither effective nor
trusted mechanisms for holding police to account for alleged misconduct.
Of the oversight bodies that exist, most are only able to investigate
individual cases, not patterns of systemic mistreatment. Indigenous
women do not report police mistreatment because of fear of police
retaliation and fear that they will not be believed. The failures of
oversight mechanisms must be reviewed by the national inquiry and
entirely new mechanisms for police accountability considered.
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This examination should include a review of the approximately 1200
cases of murders and disappearances to identify systemic patterns of
failure and the means of addressing them; and a review of filed
complaints, investigations, charges and prosecutions related to police
violence against Indigenous women and girls to identify failures in
accountability mechanisms, and the means of addressing those failures.
Recommendation 12: That the national inquiry address fully the
failures of police and the justice system to protect Indigenous women
and girls from male violence and to investigate, prosecute, and
punish the perpetrators promptly and diligently.
Recommendation 13: That the national inquiry be mandated to
examine the conduct of the RCMP, provincial and territorial police
forces, and Indigenous police forces on reserves and Métis and Inuit
settlements, as well as policing systems and institutions, standards,
discipline, protocols, oversight, complaint mechanisms, prosecutorial
practices, and judicial decision-making.
Recommendation 14: That the national inquiry fully address state
violence against Indigenous women and girls, including the historic
and institutionalized devaluing of their lives in the Indian Act and
other policies and laws, and direct violence against Indigenous
women and girls committed by police, other justice system officials,
and state representatives in positions of authority.
9. Data Collection
Accurate statistics are vital to understanding the scope and nature of the
male violence faced by Indigenous women and girls. It was not until the
2014 RCMP report that there was any official national reporting on the
numbers of disappeared and murdered Indigenous women and girls, and
some RCMP-gathered data, although commented on by politicians, was
never released to the public where it could be subject to scrutiny.
Although the homicide reporting that began with the 2014 RCMP report
is being continued through Statistics Canada, reporting on the numbers
of missing Indigenous women and girls is apparently not, and there is no
reporting on suspicious deaths. Furthermore, important questions have
been raised about aspects of police reporting including claims about the
solve rates for murders of Indigenous women. In short, reliable and
comprehensive data is lacking.
It is crucial that the national inquiry assess available data and identify
gaps and shortcomings. Feminist experts on data on male violence
against women and, in particular on data on violence against Indigenous
women and girls, need to be a part of this key examination. A credible
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and permanent national database and methodology for gathering and
reporting statistics on murders and disappearances of Indigenous women
and girls should be one of the outcomes of the inquiry. This database
must include sufficient details to allow analysis of the patterns of men’s
and state violence against Indigenous women and girls and the risks
these women and girls face.
Recommendation 15: That a component of the national inquiry's
work be to develop a permanent mechanism and procedures for
collecting data on male violence against Indigenous women and girls,
and their murders and disappearances, by collecting statistics on
Indigenous origin or identity, reviewing existing methods, identifying
gaps and designing new means of collecting comprehensive and
accurate national data, with specific attention to ensuring the
security and integrity of the data, the privacy of Indigenous girls and
women and their families, and to providing mechanisms for
accountability in the event of misuse, abuse or mishandling of the
data.
10. Independence
The inquiry must be independent from government in every way. It needs
to be able to establish its own process, hire its own staff, contract with
researchers, hold hearings, summon witnesses, require production of
documents, and exercise an independent public voice throughout its
work.
Recommendation 16: That the national inquiry be independent from
government, adequately funded, and free of legal, time or funding
restrictions that will impede its ability to effectively address the
scope and nature of the problem.
11. Leadership
This inquiry must be led by feminist Indigenous women. They should be
women of integrity, with substantive human rights knowledge, broad
vision, and thorough understanding of the structural inequality that is at
issue.
Prior to colonization, Indigenous women were included in decisionmaking and leadership roles in their nations. They were respected in both
political and familial spheres. Colonization led to patriarchal shifts in who
was respected as a decision-maker and whom settlers recognized as
leaders. Due to colonization, Indigenous women have been excluded
from important decision-making for decades. Indigenous women must be
returned to a role of leadership for the inquiry.
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Over the last four decades, Indigenous women have advocated for
missing and murdered Indigenous women and girls and they have built
skills and gained trust. They have been gathering data, speaking with
families and working in the communities affected by this violence. Their
expertise must be recognized and utilized.
There must also be opportunities for Indigenous women to bring other
Indigenous women into the arena of the inquiry by disseminating
information, and providing training and supportive assistance.
Recommendation 17: That the national inquiry be led by Indigenous
women.
12. Phases, Components, Capacities of an Inquiry
This inquiry must have different components, phases, and capacities.
a) Review of Extant Recommendations
It has been noted that there are some issues that do not need further
examination. The CEDAW Committee and the Inter-American Commission
on Human Rights have already made recommendations. Canada is
obliged to implement these recommendations, and without delay. The
first work of the inquiry should be to ensure that these
recommendations, including the complete elimination of sex
discrimination from the Indian Act, are implemented, as well as to study
other extant recommendations and identify those that can and should be
acted on immediately. The inquiry can provide oversight of the
implementation of these recommendations and issue interim reports.7
b) Scrutiny of Systemic Discrimination
The inquiry will need to identify gaps where research is needed, or where
information needs to be gathered. It will need to provide for robust and
thorough examination of systemic discrimination in policing and the
justice system, and with respect to social and economic conditions and
the failures, inadequacies and omissions in Canada’s social programs and
services that permit and perpetuate violence against Indigenous girls and
women.
c) Independent Mechanism for Review of Individual Cases
This approach – issuing initial recommendations and overseeing and reporting on their
implementation – has been taken by the Interdisciplinary Group of Independent Experts
(IGIE), mandated by the Organization of American States to investigate the forced
disappearances of 43 students in Ayotzinapa, Mexico. Further information is available
at: http://www.oas.org/en/iachr/media_center/PReleases/2015/119.aspheev
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As noted above, the inquiry needs to design and establish an
independent mechanism for the review of individual cases where family
or community members believe an investigation or conclusion was faulty.
The inquiry should provide oversight and interim reports on the work and
progress of this independent review mechanism.
d) Engagement of Different Stakeholders
The pre-inquiry consultation phase of the inquiry has assumed a “families
first” approach that lacks a clear articulation of what “family” means and
risks creating a false division between Indigenous women and girls and
their families.
Indigenous women's and girls' experiences cannot be artificially
separated from their affected families or situated in a hierarchy. For many
Indigenous women, there is no separation between them and their family
and community, be it their biological families and communities of origin,
or a chosen family and community. Indigenous women and girls and their
affected families are central stakeholders. For the inquiry to engage with
these stakeholders in a meaningful way, mainstream understandings of
“family” and “Indigenous women and girls” must be deconstructed and
recognized for their complexity.
Many Indigenous women and girls have chosen to flee their biological
families and communities of origin. They have established themselves in
other communities and have a different, chosen family, or a “family of the
heart” with people, who may have few or no ties, biological or other, with
Indigenous communities. The many people who make up Indigenous
women's and girls’ chosen families must also be understood as family
within the mandate of the inquiry.
The inquiry must broadly define Indigenous women and girls to include,
not only status First Nations women, Métis and Inuit women, but also all
women and girls who identify as Indigenous, irrespective of whether they
are status Indian or formally recognized in their Indigenous communities
of origin. The Indian Act does not exhaustively define who is “Indian”; in
this absence of a definition, the Supreme Court has found that the federal
government's jurisdiction over “Indians”, pursuant to section 91(24) of
the Constitution Act, 1867, intended to encompass a population that was
“mixed, varied and inter-related”.8
Indigenous women and girls, their families, communities, and allies are
all different stakeholders in the inquiry process. The inquiry must foster
Mary Eberts, “Capacity of a federally-appointed inquiry to examine police behaviour
and policy with respect to Indigenous women and girls,” Symposium Presentation, at 45. Also see Canada (Indian Affairs) v Daniels, 2014 FCA 101.
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Indigenous women's participation and create a space for the different and
unique voices of Indigenous women and girls. This imperative requires
the inquiry to ground itself in an expressly “Indigenous feminist”
framework that privileges and centers the voices of Indigenous women
and girls and their affected families, recognizing the varied
understandings of families and how these understandings engage a
broader stakeholder base, beyond biological Indigenous families.
Allies of Indigenous women and girls, including Indigenous, women's,
human rights and other civil society organizations are also stakeholders
in this inquiry. Allied civil society organizations have advocated alongside
Indigenous women and girls and their families for the creation of a
national inquiry. There must also be a place for civil society to contribute
their expertise to the inquiry. The process of civil society engagement,
similar to the process of engagement for Indigenous women and girls
and affected families, must be clear and publicized.
e) Different Kinds of Hearings
The inquiry will need different kinds of hearings – institutional,
community, expert – in order to ensure that different classes of
participants can inform the inquiry in the most appropriate and
supportive settings. The particular needs of Indigenous women and
family members in rural, remote and Northern communities will need to
be taken into account.
f) Public Education Component and Inquiry Process
The inquiry needs to be consciously pedagogical, and its process matters.
Its job is to build trust among Indigenous women, their families and
communities and to build understanding in the broader society, so that
the final recommendations and plan of the inquiry will be generously
received. The inquiry needs to have "a clear media strategy, hold hearings
that are not 'lawyer-driven', provide genuine opportunities for civil society
engagement,...welcome independent research, and make it clear that all
the evidence it hears will be valued."9
g) Formulation of a Plan
The inquiry will need a close-to-final stage at which recommendations can
be reviewed and formulated into a comprehensive, national co-ordinated
plan, with participation of provinces, territories, and other stakeholders.
The traditional outcome of an inquiry is a set of recommendations that is
delivered to government to implement. In this circumstance, however, it
Kim Stanton, "Institutional Design Considerations for Achieving an Effective Inquiry",
January 30 – 31, 2016, Notes for Symposium Presentation.
9
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is clear that the desired outcome is a national action plan, which, for
many years, has been called for. The inquiry should provide the venue
and a process for the formulation of this plan with federal, provincial and
territorial government engagement, and the participation of other
stakeholders.
h) Monitoring Implementation
The inquiry will need a transparent and participatory mechanism for
monitoring and reporting on implementation of its final
recommendations and plan.
Recommendation 18: That the Government of Canada immediately
amend the Indian Act to remove all discrimination on the basis of sex
from the Act and its administration, as recommended repeatedly by
the United Nations Committee on the Elimination of Discrimination
against Women and other international human rights bodies.
Recommendation 19: That the mandate of the national inquiry
provide for a phased process, to be determined by the commission,
beginning with a review of outstanding recommendations from the
United Nations Committee on the Elimination of Discrimination
against Women and the Inter-American Commission on Human
Rights, and other extant recommendations, to identify those that can
and should be implemented without further study or delay. The
inquiry should provide interim reports on its work, and monitor the
implementation of its recommendations on an ongoing basis. The
outcome of the inquiry should be a comprehensive national action
plan, achieved through a public and transparent negotiation among
parties, with the participation of Indigenous women and their
organizations.
Recommendation 20: That the mandate of the inquiry provide for
mandatory implementation of the inquiry’s outcomes and establish a
mechanism and procedures for ongoing monitoring of the
implementation process.
Recommendation 21: That the national inquiry provide funding and
other necessary supports to ensure the full participation of
Indigenous women and girls, families of missing and murdered
Indigenous women and girls, Indigenous women’s organizations and
other knowledgeable civil society organizations.
Recommendation 22: That the national inquiry have a built-in public
education component in order to provide information and public
education about the murders and disappearances of Indigenous
18
women, and its causes and consequences, to the Canadian public, on
an ongoing basis.
19
Consolidated Recommendations
1. Scope and Design of the Inquiry
Recommendation 1: That the national inquiry's mandate, as originally
announced, be focused on gendered, racialized and sexualized violence
against Indigenous women and girls, and their murders and
disappearances in particular.
2. Goals of the Inquiry
Recommendation 2: That the goal of the national inquiry be to provide a
systemic examination of the causes and consequences of gendered,
racialized and sexualized violence against Indigenous women and girls,
including the harms to their families and communities, and to identify the
measures necessary to address them effectively.
3. Analytical Framework
Recommendation 3: That the national inquiry undertake its work using
an Indigenous feminist analysis that incorporates gender based analysis
and Indigenous law, and that its analysis, framework and strategy be
grounded by the specific realities and conditions of Indigenous women’s
and girls’ lives in Canada.
4. Human Rights Approach
Recommendation 4: That the mandate specify that the national inquiry
will take a human rights-based approach and that its standards, analysis
and outcomes will be grounded in human rights, including instruments
that set out women's human rights and the rights of Indigenous peoples.
Recommendation 5: That the Government of Canada implement the
recommendations of the United Nations Committee on the Elimination of
Discrimination and the Inter-American Commission on Human Rights,
which have investigated the murders and disappearances, issued reports,
and made concrete recommendations to Canada about how to move
forward. These recommendations provide a base line for the inquiry and
implementing them must be the first phase of the work of the inquiry.
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5. A National Inquiry
Recommendation 6: That the Government of Canada immediately secure
participation in the inquiry from all the provinces and territories to
ensure that the inquiry is truly national in scope, and is not hampered by
jurisdictional limitations.
6. Harms to Families and Communities
Recommendation 7: That the national inquiry fully address the harms
done to family members and communities by gendered, racialized and
sexualized violence against Indigenous women and girls and inadequate
police response to it, and provide safe, supportive spaces, with
counselling, financial support and legal assistance as required, in which
family members and community members can tell their stories and seek
redress.
Recommendation 8: That the national inquiry develop a special
mechanism for the independent review of those cases where family
members or Indigenous organizations believe that investigations or
official conclusions regarding deaths or disappearances should be reexamined.
7. Systemic Focus
Recommendation 9: That the national inquiry fully address the root
causes of gendered, racialized and sexualized violence against Indigenous
women and girls, including the systemic and institutionalized devaluing
of the lives of Indigenous women and girls, the harmful impact of colonial
laws and policies, the proliferation of sexualized violence and imagery of
sexualized violence, and all other factors that have caused the past and
present structural inequalities and violence against Indigenous women
and girls.
Recommendation 10: That the national inquiry fully address the
profound social and economic disadvantage of Indigenous women and
girls caused by Canada’s colonial history. In particular, the national
inquiry must address the poverty of Indigenous women and girls and
their disadvantaged social and economic conditions in housing, food
security, education, employment, child welfare, and their overincarceration.
Recommendation 11: That the national inquiry's analysis of gendered,
racialized and sexualized violence include an examination of sexual
exploitation and trafficking of Indigenous women and girls, and their
causes and consequences.
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Recommendation 12: That the national inquiry address fully the failures
of police and the justice system to protect Indigenous women and girls
from male violence and to investigate, prosecute, and punish the
perpetrators promptly and diligently.
Recommendation 13: That the national inquiry be mandated to examine
conduct of the RCMP, provincial and territorial police forces, and
Indigenous police forces on reserves and Métis and Inuit settlements, as
well as policing systems and institutions, standards, discipline, protocols,
oversight, complaint mechanisms, prosecutorial practices and judicial
decision-making.
Recommendation 14: That the national inquiry fully address state
violence against Indigenous women and girls, including the historic and
institutionalized devaluing of their lives in the Indian Act and other
policies and laws, and direct violence against Indigenous women and girls
committed by police, other justice system officials, and state
representatives in positions of authority.
8. Data Collection
Recommendation 15: That a component of the national inquiry's work be
to develop a permanent mechanism and procedures for collecting data on
male violence against Indigenous women and girls, and their murders
and disappearances, by collecting statistics on Indigenous origin or
identity, reviewing existing methods, identifying gaps and designing new
means of collecting comprehensive and accurate national data, with
specific attention to ensuring the security and integrity of the data, the
privacy of Indigenous girls and women and their families, and to
providing mechanisms for accountability in the event of misuse, abuse or
mishandling of the data.
9. Independence
Recommendation 16: That the national inquiry be independent from
government, adequately funded, and free of legal, time or funding
restrictions that will impede its ability to effectively address the scope
and nature of the problem.
10. Leadership
Recommendation 17: That the national inquiry be led by Indigenous
women.
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11. Phases, Components, Capacities of an Inquiry
Recommendation 18: That the Government of Canada immediately
amend the Indian Act to remove all discrimination on the basis of sex
from the Act and its administration, as recommended repeatedly by the
United Nations Committee on the Elimination of Discrimination against
Women and other international human rights bodies.
Recommendation 19: That the mandate of the national inquiry provide
for a phased process, to be determined by the commission, beginning
with a review of outstanding recommendations from the United Nations
Committee on the Elimination of Discrimination against Women and the
Inter-American Commission on Human Rights, and other extant
recommendations, to identify those that can and should be implemented
without further study or delay. The inquiry should provide interim reports
on its work, and monitor the implementation of its recommendations on
an ongoing basis. The outcome of the inquiry should be a comprehensive
national action plan, achieved through a public and transparent
negotiation among parties, with the participation of Indigenous women
and their organizations.
Recommendation 20: That the mandate of the inquiry provide for
mandatory implementation of the inquiry’s outcomes and establish a
mechanism and procedures for ongoing monitoring of the
implementation.
Recommendation 21: That the national inquiry provide funding and
other necessary supports to ensure the full participation of Indigenous
women and girls, their families and communities, and Indigenous
women’s organizations and other knowledgeable civil society
organizations.
Recommendation 22: That the national inquiry have a built-in public
education component in order to provide information and public
education about the murders and disappearances of Indigenous women,
and its causes and consequences, to the Canadian public, on an ongoing
basis.
23